The Fourth Amendment protects you against illegal search and seizure. So does the Texas state constitution.
This means that when police officers break the law and obtain evidence in an investigation in a way that violates your rights, your attorney can file a Motion to Suppress that evidence. If the Motion is successful, no jury will hear that evidence and the District Attorney’s case will be just that weaker.
What’s the difference between state illegal search and seizure law and federal illegal search and seizure law?
The major difference is that in Texas, illegal searches by private citizens are also covered, if the citizen broke the law at the time of the search.
What makes a search unreasonable?
A search is unreasonable if there was no valid search warrant at the time the search took place, or the search took place during a time when no valid exception to the warrant requirement was in force.
What must be included in a search warrant?
A search warrant is a written order issued by a judge. It must outline exactly what the police are to search for and where police shall search.
Judges may only issue these warrants if there is probable cause for the search. Probable cause means police have a reason to believe a crime has taken place.
That’s why in Texas, police attach an affidavit to their requests. This affidavit outlines all of the facts they’ve already gathered that give them probable cause for their search.
What are the main exceptions to a search warrant?
The first is consent, which is why we teach our clients to always make it clear that they do not consent to a search when it looks like a search of their home, person, or car is about to take place. While this doesn’t usually stop police from conducting the search, it can be useful to your case later, when your defense attorney is protesting it.
Another exception is when the search is “incident to a lawful arrest.”
Police can also gather evidence when it is in plain view, or in circumstances where you the defendant are deemed to have “no reasonable expectation of privacy.”
They can also conduct a warrantless search in circumstances where they are attempting to prevent evidence from being destroyed.
Officers can search your person if they fear for their safety or believe you’re carrying a weapon, if an arresting officer has requested backup but is currently alone, if your behavior seems threatening or if your surroundings seem suspicious.
Finally, they may search if they had probable cause to stop your vehicle, and are searching your vehicle specifically.
Can the police search my cell phone without a warrant?
In 2013 the Supreme Court ruled against the use of a warrantless cell phone search in Riley v. California. Police must obtain a warrant to search a phone, even if you’re already under arrest.
“Cell phones differ in both a quantitative and a qualitative sense from other objects that might be carried on an arrestee’s person. Notably, modern cell phones have an immense storage capacity. Before cell phones, a search of a person was limited by physical realities and generally constituted only a narrow intrusion on privacy. But cell phones can store millions of pages of text, thousands of pictures, or hundreds of videos. This has several interrelated privacy consequences. First, a cell phon collects in one place many distinct types of information that reveal much more in combination than any isolated record. Second, the phone’s capacity allows even just one type of information to convey far more than previously possible. Third, data on the phone can date back for years. In addition, an element of pervasiveness characterizes cell phones but not physical records. A decade ago, officers, might have occasionally stumbled across a highly personal item such as a diary, but today many of the more than 90% of American adults who own cell phones keep on their person a digital record of nearly every aspect of their lives.”
While it’s true that if you’re already sitting in a cell it is unlikely that a judge will refuse to grant police officers the warrant, this provision does grant you some help if police jump the gun.
What can your defense attorney do with an illegal search?
As mentioned, your defense lawyer can get all evidence obtained through an illegal search thrown out of court so a jury never hears it. We can also suppress any evidence directly produced by such a search, a phenomenon known as the “fruit of the poisoned tree.”
If You’ve Been Charged With a Crime, Get Help Today
Even if the police conducted an illegal search and seizure you’re not off the hook yet.
If you’ve been charged, you’ll need an experienced criminal defense lawyer to help you protect your rights. Reach out to Greco Neyland to get help right now.
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